Exhibit 3.77
________________________________________
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇▇▇ LANSDALE LIMITED PARTNERSHIP III
Dated as of June 17, 1999
________________________________________
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the “Agreement”) made and entered into as of June 17, 1999, by and among ▇▇▇▇▇▇ Operating Partnership, L.P., a Delaware limited partnership, as general partner (the “General Partner” or “WOP”), and Brandywine Operating Partnership, L.P., a Delaware limited partnership (the “Limited Partner”). The General Partner, the Limited Partner and such other persons as may become partners of the partnership (as defined herein) in accordance with this Agreement are hereinafter sometimes referred to collectively as the “Partners” and individually as a
“Partner.”
By Certificate of Limited Partnership filed with the Secretary of State of the Commonwealth of Pennsylvania on January 16, 1989, ▇▇▇▇▇▇▇ Lansdale Limited Partnership III (the “Partnership”) was formed with ▇▇▇▇▇▇▇ Lansdale III, Inc. as its sole general partner (the “Original General Partner”) and one or more other persons as limited partner(s).
On the date hereof, the General Partner and the Limited Partner are the sole Partners of the Partnership.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree that the Agreement of Limited Partnership of the Partnership is hereby amended and restated in its entirety, as follows:
| Section
1.1. Continuation, Partners and Name |
| |
| (a) The
Partners hereby elect to continue the business of the Partnership as a limited
partnership pursuant to the provisions of the Revised Uniform Limited Partnership
Act as in effect in the Commonwealth of Pennsylvania on the date hereof,
as the same may be amended from time to time (the “Act”), for
the purposes set forth in Section 2 hereof. The Partners shall consist of
WOP, as the sole General Partner, and BOP as Limited Partner. The business
and affairs of the Partnership shall be conducted under the name set forth
above or such other name as the General Partner shall, in its sole discretion,
designate in writing. |
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| (b) By
executing this Agreement each Partner hereby agrees that the Partnership
shall be governed by the Act except as otherwise herein expressly stated.
Upon or promptly after the execution of this Agreement, the General Partner
shall execute and cause to be filed an Amended and Restated Certificate
of Limited Partnership and such other applications, elections, certificates
and documents as are required for the continuation of a limited partnership
under the Act, or as may be necessary to permit the Partnership to engage
in the activities contemplated by Section 2 hereof; and the Partners shall
further obtain such business licenses, certificates of qualification and
other evidences of authority and shall execute all certificates, notices,
statements, and other instruments as may from time to time during the term
of the Partnership be necessary or appropriate in the opinion of the General
Partner to the achievement of the purposes set forth in Section 2 or as
may be required by applicable law so that the Partnership may conduct its
business and own the Property (as defined herein). |
| |
| Section
1.2. Partnership Purposes |
The
purpose of the Partnership is to directly or indirectly acquire, own, hold,
construct, develop, maintain, lease, mortgage, encumber, operate, sell and/or
transfer, convey or exchange one or more parcels of land and any buildings now
existing or hereafter constructed thereon (collectively, the “Property”)
and to enter into and perform any and all other activities as may be incidental
or related thereto. To carry out these purposes the Partnership shall, subject
to the terms of this Agreement and any other agreement entered into by the Partnership,
have and exercise all powers now or hereafter permitted by the laws of the Commonwealth
of Pennsylvania to be exercised by a limited partnership formed under the laws
of that state, and to do any and all things not prohibited by law in furtherance
of the business of the Partnership.
| Section
1.3. Term of Partnership |
The term of the Partnership has commenced and shall continue until December 31, 2094, unless earlier dissolved pursuant to the terms of this Agreement or by operation of law.
| Section
1.4. Principal Place of Business; Registered
Office |
The principal place of business and the registered office of the Partnership is at the offices of the General Partner, Newtown Square Corporate Campus, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other location as the General Partner shall from time to time determine.
| Section
1.5. Partnership Interests |
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| (a) The
Partnership shall initially have two classes of partnership interests (“Partnership
Interests”): (i) general partnership interests (“General
Partnership Interests”); and (ii) limited partnership interests
(“Limited Partnership Interests”). |
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| (b) The
General Partner may in its sole discretion cause the Partnership to create
and, subject to Section 7(d), issue such additional classes of Partnership
Interest with such rights, privileges, and franchises as it determines to
be appropriate. Any such issuance may be made by the General Partner, acting
singly without the consent of any other Partner, by setting forth either
in an amendment or an addendum to this Agreement, the relative rights, obligations,
duties, and preference of each new class of securities or interests that
is created. A copy of this Agreement as so amended, or the addendum as so
adopted, as the case may be, shall be provided to each other Partner. All
filings necessary to be made under the Act or applicable law in connection
with the creation of any such interest shall be made by the General Partner
on behalf of the Partnership. No Partner shall have any preemptive or other
rights to subscribe for or acquire any additional securities, interests
or indebtedness which may be issued by the Partnership. |
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| (c) Subject
to Section 7(d), the General Partner may solicit and accept additional capital
contributions from any Partner or other person and/or cause the Partnership
to issue additional partnership interests, rights, options or warrants exercisable
for or convertible into partnership interests, or any other “securities”
of any type or class whatsoever. Any such securities may be issued for cash,
property, services, or such other type, form, and amount of |
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consideration (including notes, other evidences
of indebtedness or obligations of the person acquiring the security as the case
may be) as the General Partner may determine to be appropriate.
| (d) Any
person may hold more than one class of Partnership Interest at the same
time, and in such event shall for the purposes of this Agreement be separately
entitled to the rights afforded a Partner in each of such classes under
this Agreement. To the extent that a General Partner contributes to the
capital of the Partnership as a Limited Partner or purchases any Limited
Partner’s Partnership Interest, it shall be treated in all respects
as a Limited Partner as to such interest. |
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| (e) No
Limited Partner shall either directly or indirectly take any action to require
partition or appraisal of the Partnership or any of its assets or properties
or cause the sale of any Partnership property, and notwithstanding any provision
of applicable law to the contrary, each Partner (and its or his legal representatives,
successors or assigns) hereby irrevocably waives any and all right to maintain
any action for partition or to compel any sale with respect to its or his
Partnership Interest, or with respect to any assets or properties of the
Partnership, except as expressly provided in this Agreement. |
| |
| (f) All
real and personal property owned by the Partnership shall be owned by the
Partnership as an entity, and insofar as permitted by applicable law, no
Partner shall have any ownership interest in such property in his or its
individual name or right. Each Partner’s interest in and to all Partnership
property shall be personal property for all purposes. Without limiting or
expanding the foregoing, to the extent allowable under applicable law, the
Partnership may hold title to all or any part of its properties or assets
in the name of an individual, corporation, partnership, trust or otherwise,
the beneficial interest in which shall at all times be vested in the Partnership,
and may agree that any such title holders be vested with all or any part
of the powers which might otherwise reside in the Partnership. Any such
title holder shall perform any and all of their respective functions to
the extent and upon such terms and conditions as may be determined from
time to time by the General Partner in its sole discretion. All Partnership
assets shall be recorded as the property of the Partnership on its books
and records, regardless of the name in which legal title may be held. |
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| (a) The
General Partner. The Partnership shall be managed by or under the direction
of the General Partner. Unless otherwise specifically set forth herein,
all decisions relating to the business and affairs of the Partnership shall
be made, and all action proposed to be taken by or on behalf of the Partnership
shall be taken, by or under the direction of the General Partner in its
sole and absolute discretion and without the consent of the Limited Partners.
All such decisions or actions made or taken by or under the direction of
the General Partner hereunder shall be binding upon all of the Partners
and the Partnership. All approvals, consents, or ratifications of actions
taken by the General Partner required herein may be prospective or retroactive. |
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| (b) Specific
Power and Authority of the General Partner. Subject to any limitations
expressly set forth herein, the General Partner shall have and exercise,
and is hereby granted, all of the powers of the Partnership and full, exclusive,
and complete authority and discretion in the management and control of the
Partnership. Without limiting the foregoing, the power and authority of
the General Partner to make all decisions with respect to the business and
affairs of the Partnership and to take such action for and on behalf of
the Partnership as it may deem necessary or appropriate to enable the Partnership
to carry out its purposes shall include, without limitation, the full and
complete power and authority, without the consent of the Limited Partner,
to do the following: |
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| (i) borrow
money, procure loans and advances from, for and on behalf of the Partnership
(including, without limitations, loans made by the General Partner or any
Affiliate to the Partnership), cause any Affiliate to borrow money from,
for or on behalf of such Affiliate, to guaranty the obligations of any Affiliate
for borrowed money, and to repay, discharge, settle, adjust, compromise
or liquidate any such loan or advance, in each case upon such terms and
conditions as the General Partner deems necessary or appropriate; |
| |
| (ii) cause
the Partnership to lend money (on either a secured or an unsecured basis)
to the General Partner, any Affiliate or to any other person or entity on
such terms and conditions as the General Partner determines to be necessary
or appropriate; |
| |
| (iii) to
secure any loans to the Partnership (including, without limitation, loans
from the General Partner or any Affiliate or other person) or to secure
loans to any Affiliate or other person or to secure any guaranty by the
Partnership of either its obligations or the obligations of any Affiliate
or other person, convey, mortgage, pledge, assign, or hypothecate, for and
on behalf of the Partnership or any Affiliate of the Partnership all or
any part of the Property or other assets of the Partnership; to secure any
of its obligations (or any obligation of any of its Affiliates (including
obligations of the General Partner)) by mortgage, pledge or other encumbrance
of all or any of the Partnership’s property or assets (including,
without limitation, mortgages securing obligations of Affiliates or other
persons that are cross-collateralized and/or cross-defaulted with mortgages
securing the obligations of such or other Affiliates and persons); to grant
any right which it deems necessary or appropriate to be granted with respect
to any properties or assets of the Partnership, including, without limitation,
easements and other rights appertaining to real property held by the Partnership; |
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| (iv) execute
and deliver for and on behalf of the Partnership or any Affiliate or other
person any contract necessary or incidental to the operation of the property
or any business of the Partnership (including any contract of guaranty or
suretyship), any promissory note, bond, deed of trust, mortgage, security
agreement, financing statement, lease, assignment of leases, guaranty, or
other obligation or evidence of indebtedness and all instruments required
or advisable in connection with any such instrument; |
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| (v) obtain
insurance on the Property and any other assets of the Partnership; |
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| (vi) acquire
and hold the Property and such other real property, tangible and intangible
personal property (including, without limitation, securities or other interests
in any entity, and to acquire any such securities or interests in exchange
for real or personal property) and other assets as may be necessary or desirable
to carry on the business, of the Partnership, or to cause any Affiliate
in which the Partnership is a partner or shareholder to acquire and hold
real property, tangible and intangible personal property and other assets;
and to sell, lease, mortgage, pledge, assign, hypothecate, develop, manage,
use, operate, exchange or otherwise dispose of such real property, tangible
and intangible personal property and other assets upon such terms and conditions
as the General Partner deems necessary or appropriate; |
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| (vii) construct,
develop, maintain, operate, improve and sell any or all properties owned
by the Partnership, or cause such properties to be constructed, developed,
maintained, and operated and improved by any Affiliate including, expressly,
the power and authority to consummate any interim or permanent financing
with respect thereto; |
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| (viii) lease
the Property and any property owned by any Affiliate and collect all rentals
and all other income accruing to the Partnership or such Affiliate, and
to pay all acquisition and construction or development costs and all expenses
of operation, whether capital or otherwise with respect to the Property
and/or such properties owned by an Affiliate; |
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| (ix) prepare,
or have prepared, and file all tax returns for the Partnership and make
all tax elections for the Partnership, including any election under Section
709 of the Internal Revenue Code of 1986, as amended (the “Code”),
to amortize certain organizational expenditures incurred by the Partnership
over a period of not less than 60 months, and an election under Code Section
754, provided, however, that the Partner or Partners requesting that the
Partnership make such election under Code Section 754 shall reimburse the
Partnership for any additional costs incurred by the Partnership in making
the election for and on behalf of the Partnership; |
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| (x) institute,
prosecute, defend and settle any legal, arbitration or administrative actions
or proceedings on behalf of or against the Partnership or any Affiliate
or other person (including, without limitation, any insurance claims), as
the General Partner, in its sole discretion, may deem necessary or desirable; |
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| (xi) maintain
and operate the assets of the Partnership or any Affiliate or other person
or any part or parts thereof; |
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| (xii) employ,
engage or contract with and dismiss or terminate the employment of, supervise
and compensate such persons, firms or corporations for and in connection
with the business of the Partnership or any Affiliate and the acquisition,
development, improvement, operation, maintenance, management, leasing, financing,
refinancing, sale, exchange or other disposition of any assets of the Partnership
or any Affiliate or other person or any interest in any of such assets as
the General Partner, in its sole discretion, may deem necessary or desirable; |
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| (xiii) pay
any debts and other obligations of the Partnership or Affiliate and to cause
any Affiliate to pay the debts and obligations of such Affiliate, including
amounts due under any construction and permanent financing of improvements
and other loans to the Partnership or such Affiliate, as the case may be,
and costs of operation and maintenance of the assets of the Partnership
or such Affiliate, as the case may be; |
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| (xiv) pay
all taxes, assessments, rents and other impositions applicable to the assets
of the Partnership or any Affiliate and undertake when appropriate any action
or proceeding seeking to reduce such taxes, assessments, rents or other
impositions; |
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| (xv) deposit
or invest all monies received by the General Partner for or on behalf of
the Partnership or any Affiliate as the General Partner shall deem appropriate
and to conduct all banking transactions, open, maintain and close bank accounts
and change signatories on such accounts, and to draw checks and other orders
for the payment of monies and to disburse all funds on deposit and liquidate
such investments on behalf of the Partnership or such Affiliate in such
amounts and at such times as the same may be required; |
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| (xvi) sell
or otherwise transfer all, substantially all or any of the Property and
other assets of the Partnership or to cause any Affiliate to sell or otherwise
transfer all or any of its properties and other assets, in each case upon
such terms and conditions as the General Partner deems necessary or appropriate; |
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| (xvii) act
as the tax matters partner for the Partnership or any Affiliate (within
the meaning of Code Section 6231); |
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| (xviii) perform
other obligations provided elsewhere in this Agreement to be performed by
the General Partner, including, without limitation, the preparation of all
financial reports, the maintenance of the Partnership books and records; |
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| (xix) in
connection with borrowings made by or on behalf of the Partnership from
the General Partner, mortgage, pledge, or otherwise grant securities interests
on any or all of the Partnership’s assets or properties to secure
the obligation of the Partnership to the General Partner and the obligations
of the General Partner to its lenders in respect of any such borrowings
or otherwise; and |
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| (xx) take
any and all other actions as the General Partner may deem necessary or appropriate
in furtherance of the business of the Partnership. |
The
General Partner shall be entitled to act upon any resolution, certificate, statement,
agreement, document, or other instrument, and to consult with legal counsel,
accountants, appraisers, and other professionals and persons, and to rely upon
the authenticity and genuineness of all such writings and the advice of such
persons in connection with the business of the Partnership. Any act which may
be taken by the General Partner hereunder, may be taken by any of its duly authorized
officers or any attorney-in-fact for either the General Partner or such officers.
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By executing this Agreement, the Limited Partner hereby expressly consents to any exercise by the General Partner of any or all of the foregoing powers.
| (c) Guaranty
of Obligations of the General Partner. The General Partner and Limited
Partner expressly acknowledge and agree that the Partnership’s financial
standing and economic viability depend in large part on the financial standing
and economic viability of the General Partner and its Affiliates, including
the General Partner’s ability to borrow funds for the benefit of the
General Partner and all of its Affiliates, and to secure such borrowings
with first and subordinate liens on real property. The General Partner and
Limited Partner hereby consent and agree to any and all guarantees by the
Partnership of indebtedness for borrowed money and other obligations of
the General Partner and/or any other Affiliate. The General Partner and
Limited Partner hereby consent and agree that it is a good and valid Partnership
purpose given for good and valuable consideration for the benefit of all
the Partners for the Partnership to convey, mortgage, assign, pledge and/or
hypothecate the Property, any tangible or intangible personal property or
any other assets of the Partnership as security for any such guaranty or
as security for the obligations or liabilities of the General Partner and/or
any other Affiliate. The foregoing is given with the understanding and agreement
that the General Partner and each other Affiliate for whose benefit any
such guaranty is given will have the power and authority to guaranty obligations
and liabilities of the Partnership. |
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| (d) Evidence
of Authority of General Partner. The signed statement of the General
Partner, reciting that it has authority to undertake any act, when delivered
to any third party, shall be all the evidence such third party shall need
concerning the capacity or authority of the General Partner to so act, and
any such third party shall be entitled to rely upon such statement and shall
not be required to inquire further as to any of the facts contained in such
statement, said facts being deemed to be true insofar as such third party
is concerned. |
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| (e) Limited
Partner. The Limited Partner shall have no right or authority to act
for or to bind the Partnership and shall not participate in the conduct,
management or control of the Partnership’s affairs or take any action
that would cause a default or non-compliance under any contract or agreement
to which the Partnership is a party or which is related to the use, operation,
maintenance, development or financing of the Partnership’s properties
or assets. No Limited Partner may voluntarily withdraw from the Partnership
without the prior consent of the General Partner, which consent may be given
or withheld in the sole discretion of the General Partner. |
The Limited Partner hereby waives any rights which he might otherwise have under applicable law as a creditor with respect to any distribution to be made hereunder to the maximum extent permitted by the Act.
| (f) Specific
Consent. The Limited Partner hereby specifically consents and agrees
in accordance with the Act that the General Partner shall have the right,
power and authority, notwithstanding anything in the Act to the contrary,
to (i) sell all or substantially all of the assets of the Partnership,
(ii) confess judgment against the Partnership or execute any note,
mortgage or other agreement containing a provision pursuant to which judgment
may be confessed against the Partnership or its assets, (iii) pledge
or mortgage any or all of its assets as |
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security for the repayment of any loans to the
Partnership (including, without limitation, loans made to the Partnership by
its General Partner whether at the time of the Formation or otherwise), and
(iv) take any other action not inconsistent with the terms of this Agreement,
in each case without the further consent of the Limited Partners, which consent
shall be deemed to be granted hereby.
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| (a) Initial
Capital Contributions. On or prior to the date hereof, the Partners
have contributed to the capital of the Partnership or shall be deemed to
have contributed to the capital of the Partnership an amount equal to such
Partner’s Capital Interest (as defined below) multiplied by the fair
market value of the interests in the Partnership as of the date hereof (an
“Initial Capital Contribution”). |
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| (b) Additional
Capital Contributions. No Partner shall have any obligation to contribute
any additional sum to the capital of the Partnership. If the General Partner
determines that additional funds are necessary for Partnership purposes,
it may, at its sole discretion, borrow such funds on behalf of the Partnership
from third parties on such terms and conditions as the General Partner deems
necessary or appropriate, loan such funds to the Partnership, or subject
to Section 7(d), contribute such funds to the Partnership as an additional
capital contribution or obtain such funds through the issuance of securities
as provided in Section 5(c) above. Any loans by the General Partner to the
Partnership shall bear interest at such reasonable rate as the General Partner
shall determine, not exceeding 1.0% per annum over the greater of the General
Partner’s average cost of funds or the rate of interest charged on
the General Partner’s principal bank line of credit, in each case
as the same may change from time to time. Any loans by the General Partner
to the Partnership shall be paid out of available Operating Cash Flow from
the Partnership before any distribution shall be made to the Partners. |
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| (c) Percentage
Interest. The Partners shall have separate and differing interests in
the capital (“Capital Interest”) and in the profits (“Profits
Interest”) of the Partnership, which at the date hereof are as set
forth below: |
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|
|
|
|
|
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|
Capital
Interest |
|
Profits Interest |
|
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|
|
|
|
|
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General Partner |
88.9% |
|
98.9% |
|
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Limited Partner |
11.1% |
|
1.1% |
|
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| (d) Adjustments
to Percentage Interests. Upon the admission of any additional Partners
to the Partnership, or upon the making of any additional Capital Contribution
to the Partnership by a Partner, the percentage interests of the Partners
shall be adjusted, so that their respective percentage interests shall be
the percentage that each Partner’s aggregate Capital Contributions
to the Partnership bears to the aggregate Capital Contributions of all Partners
to the Partnership at the applicable time of determination or, in such other
manner as may be agreed to by all Partners. In any such event, the allocation
provisions of the Agreement shall be amended as may then be required by
the Code and the rules and regulations thereunder. |
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| (e) No
Interest, Etc. No Partner shall be entitled to (i) receive any interest
or other compensation on or with respect to its Capital Contributions or
withdraw any part of its capital contributions or receive any distribution,
except as provided in Sections 9 and 19 hereof; or (ii) demand or receive
any property from the Partnership other than cash. |
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| (f) Establishment
of Capital Accounts. |
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| (i) General
Rule. A capital account shall be established for each Partner (hereinafter
referred to as “Capital Account”) in the amount of such Partner’s
Initial Capital Contribution and shall be determined and maintained in accordance
with the rules of Treasury Regulation (“Treas. Reg.”) §1.704-1(b)(2)(iv).
Pursuant to such rules, a Partner’s Capital Account shall be increased
by: |
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| (A) the
amount of money contributed by the Partner to the Partnership; |
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| (B) the
fair market value of property (other than money) contributed by, or on behalf
of, the Partner to the Partnership (net of liabilities secured by such contributed
property that the Partnership assumes or subject to which it takes the property);
and |
| |
| (C) allocations
to the Partner of Partnership income and gain (or items thereof), including
income and gain exempt from tax and income based on the book values described
in Section 7(i) of this Agreement; |
and decreased by:
| (D) the
amount of money distributed to the Partner by the Partnership; |
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| (E) the
fair market value of property (other than money) distributed to the Partner
by the Partnership (net of liabilities secured by such distributed property
that the Partner assumes or subject to which he takes the property); |
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| (F) allocations
to the Partner of expenditures of the Partnership not deductible in computing
its taxable income and not properly chargeable to capital account (including
organization or syndication expenditures not deductible by the Partnership
pursuant to Code Section 709 and losses disallowed to the Partnership under
Code Sections 267(a)(1) or 707(b)); and |
(G) allocations of Partnership loss and deduction (or items thereof), including loss and deduction described in Section 7(i) of this Agreement but excluding items described in clause (F) above and percentage depletion in respect of an item of depletable property of the Partnership in excess of the adjusted tax basis of such property;
and shall otherwise be adjusted in accordance with the remaining provisions of this Section 7.
| (ii) For
purposes of paragraphs (g) through (l) of this Section 7, except as otherwise
provided herein, the fair market value of property contributed to the Partnership
or distributed by the Partnership, if permitted under Treas. Reg. §1.704-1(b)(2)(iv),
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shall be the value assigned to such property by
agreement between the General Partner and the Partner (other than the General
Partner) by which such property is contributed or to which such property is
distributed. If no such agreement as to value is made, the fair market value
of such property shall be determined by an appraisal.
| (g) Special
Rules Regarding Distributions of Property. If property (other than money)
is distributed to a Partner (whether in liquidation of his interest or otherwise)
then immediately prior to such distribution, the Capital Accounts of the
Partners shall be adjusted to reflect the manner in which the unrealized
income, gain, loss, and deduction inherent in such property (that has not
been reflected in the Capital Accounts previously) would be allocated among
the Partners if there were a taxable disposition of such property for the
fair market value of the property (but not less than the amount of any nonrecourse
indebtedness to which such property is subject) on the date of distribution. |
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| (h) Property
Carried at a Book Value Different from Tax Basis. If, pursuant to provisions
of this Section 7, property is reflected in the Capital Accounts of the
Partners and on the books of the Partnership at a book value that differs
from the adjusted tax basis of such property, then the adjustments to Capital
Accounts in respect of such property prescribed in Sections 7(g)(i)(C),
7(g)(i)(G) and 7(h) shall be determined by reference to depreciation, depletion,
amortization, gain or loss as computed for book purposes and no further
adjustments shall be made to the Capital Accounts to reflect the Partner’s
shares of the corresponding tax items. For the purposes of computing such
adjustments to Capital Accounts, the amount of book depreciation, depletion,
or amortization for a period with respect to an item of partnership property
shall be the amount that bears the same relation to the book value of such
property as the depreciation (or cost recovery deduction), depletion, or
amortization computed for tax purposes with respect to such property for
such period bears to the adjusted tax basis of such property. If such property
has a zero adjusted tax basis, the General Partner may select any reasonable
method of computing book depreciation, depletion or amortization with respect
to such property. |
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| (i) Transfers
of Interests in the Partnership. Upon the transfer of all or a part
of an interest in the Partnership, the Capital Account of the transferor
that is attributable to the transferred interest shall carry over to the
transferee, adjusted as provided in Section 7(k). If, however, the transfer
of an interest in the Partnership causes a termination of the Partnership
for federal income tax purposes, then the Capital Account that carries over
to the transferee and the Capital Accounts of all other Partners will be
recomputed as though all property and liabilities of the Partnership had
been distributed in accordance with existing Capital Account balances, adjusted
in accordance with Section 7(h), and recontributed to the Partnership (or,
in the case of liabilities, reassumed by the Partnership) as though such
contributions were being made upon the formation of a new partnership, in
accordance with the constructive liquidating distributions and recontributions
deemed to occur under Treas. Reg. §1.708-1(b)(1)(iv) (or any successor
provision). |
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| (j) Adjustments
to Capital Accounts in Connection with an Election under Code Section 754.
Upon an adjustment to the adjusted tax basis of Partnership property pursuant
|
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to Code Sections 732, 734 or 743, the Capital Accounts
of the Partners shall be adjusted as provided in Treas. Reg. §1.704-1(b)(2)(iv)(m)
(or any successor provision).
| (k) Revaluations
of Partnership Property. Upon (i) a contribution of money or other
property to the Partnership by a new or existing Partner as consideration
for an interest in the Partnership or (ii) a distribution of money
or other property by the Partnership to a retiring or continuing Partner
as consideration for relinquishment of an interest in the Partnership, the
Capital Accounts of the Partners may, in the discretion of the General Partner,
be adjusted to reflect the manner in which the unrealized income, gain,
loss or deduction inherent in all Partnership property for federal income
tax purposes (that has not been reflected in the Capital Accounts of the
Partners previously) would be allocated among the Partners under Section
8 of this Agreement if there were a taxable disposition of all Partnership
property for its fair market value immediately prior to such contribution
or distribution. For purposes of this Section 7(l) the fair market value
of Partnership property shall be the value (but not less than the amount
of any nonrecourse indebtedness to which such property is subject) assigned
to such property by agreement between the General Partner and the contributor
or distributee Partner, as the case may be. If such agreement as to value
is not made, then the fair market value of such property shall be determined
by appraisal by an M.A.I. appraiser selected by the General Partner. |
| |
| Section
1.8. Allocation of Income and Losses |
| |
| (a) General
Rules of Allocation. Net Profit, Net Losses and all items of income,
gain, loss and deduction, whether or not includible or deductible for federal
income tax purposes, shall be credited to or debited against the Partners’
respective Capital Accounts as set forth in this Section 8. It is intended
that, as a result of such allocations and the application of Section 7(g),
all liquidating distributions made pursuant to Section 16 shall be identical
to the amounts that would be distributed to each Partner if such distributions
were made instead pursuant to Section 9(c). |
| |
| (b) Net
Profits and Losses. “Net Profits” or “Net Losses”
for any fiscal year or other period shall be an amount equal to the sum
of (i) the Partnership’s taxable income or loss for such year
or period as shown or reported on the Partnership’s U.S. Partnership
return of income (but computed as provided in Section 7(i)), and (ii) any
income of the Partnership for such year or period exempt from federal income
taxation, reduced by (iii) any expenditures of the Partnership for
such year or period not deductible in computing its taxable income and not
properly capitalized for federal income tax purposes. |
| |
| (c) Net
Profits. Net Profits of the Partnership for any fiscal year or other
period shall be allocated to the Partners as follows: |
| |
| (i) First,
to those Partners having negative Capital Account balances, in proportion
to such negative balances, until such negative balances are eliminated; |
| |
| (ii) Second,
to those Partners for whom the Initial Capital Contribution reduced by distributions
of Extraordinary Cash Flow under Section 9(c)(i) (the |
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“Unrepaid Capital Contribution”) exceeds
its Capital Account balance, in proportion to such excesses, until any such
excesses are eliminated; and
| (iii) Any
remaining net losses shall be allocated to the Partners in proportion to
their respective Profits Interests in the Partnership. |
| |
| (d) Net
Losses. Net Losses of the Partnership for any Fiscal Year or other period
shall be allocated to the Partners as follows: |
| |
| (i) First,
to those Partners whose Capital Account balances exceed their Unrepaid Capital
Contributions, in proportion to such excesses, until such excesses are eliminated; |
| |
| (ii) Second,
to those Partners having positive Capital Account balances, in proportion
to such positive balances until such positive balances are eliminated; and |
| |
| (iii) Any
remaining net losses shall be allocated to the Partners in proportion to
their respective Profits Interests in the Partnership. |
| |
| (e) Distributive
Share for Federal Income Tax Purposes. The Partnership shall report
each Partner’s distributive share of Net Profits, Net Losses and items
of income, gain, loss and deduction in accordance with the rules of Section
704(b) and (c) of the Code, as determined by the General Partner upon the
advice of the Partnership’s accountants and/or tax counsel. Except
as otherwise provided herein, each Partner’s share of each item of
Partnership income, gain, loss or deduction for each taxable period shall
equal such Partner’s share of Net Profits or Net Losses for such period.
For Federal income tax purposes, the Partnership shall use the “remedial
allocation method,” as described in Treas. Reg. §1.704-3(d),
to allocate income, gain, loss or deduction with respect to any property
contributed by a Partner to the Partnership and with respect to any property
for which differences between book value and adjusted tax basis are created
pursuant to Section 7(l). These allocations shall not affect the Partner’s
Capital Account. |
| |
| (f) Deficit
in Capital Account. No Partner shall be required to restore any deficit
balance in its Capital Account to the Partnership except as required by
the Act or as provided in Section 19 of this Agreement. |
| |
| Section
1.9. Distributions |
| |
| (a) Definitions.
For purposes of this Section 9, the following terms shall have the respective
meanings set forth below: |
| |
| (i) Operating
Cash Flow: As to any fiscal year or portion thereof, Operating Revenues
less Partnership Expenses and a reserve in a reasonable amount determined
by the General Partner for working capital, payment of future known or reasonably
foreseeable expenditures, obligations, or liabilities of the Partnership,
and repairs, replacements, and improvements to any Partnership assets. |
-12-
| (ii) Operating
Revenues: As to any fiscal year or portion thereof, the total cash receipts
of the Partnership less “Capital Transaction Proceeds”
(the proceeds from Capital Contributions or from any sale, refinancing or
any similar transaction with respect to the Partnership’s assets and
less insurance proceeds), Capital Contributions, loans, any properly unapplied
advance rentals in connection with the leasing of any Partnership assets
(which shall be Operating Revenues when applied), and any unforfeited security
deposits of tenants of any Partnership assets. |
| |
| (iii) Partnership
Expenses: As to any fiscal year or portion thereof, all expenditures,
expenses, and charges related to the management and operation of the Partnership
and the conduct of its business and affairs and the ownership, leasing,
operation, improvement, construction, development, maintenance and upkeep
of any of its assets. |
| |
| (iv) Extraordinary
Cash Flow: As to any fiscal year or portion thereof, the proceeds from
the sale of any real property by the Partnership (a “Capital Transaction”)
less any expenses, costs, or liabilities incurred by the Partnership
in effecting any such sale, and an amount set aside or committed by the
General Partner for repair, improvement and replacement to or of any Partnership
assets. |
| |
| (b) Distributions
of Operating Cash Flow. At the determination of the General Partner,
but no less frequently than annually, the General Partner shall distribute
Operating Cash Flow to the Partners in proportion to their respective Profits
Interests. |
| |
| (c) Distributions
of Extraordinary Cash Flow. At the determination of the General Partner,
but no less frequently than annually, the General Partner shall distribute
Extraordinary Cash Flow, if any, to the Partners in the following order
of priority: |
| |
| (i) First,
to the Partners in proportion to, and up to, the amounts of their respective
Unreturned Capital Contributions; and |
| |
| (ii) Any
remaining amounts, to the Partners in proportion to their respective Profits
Interests. |
| |
| Section
1.10. Actions and Compensation of Partners |
| |
| (a) Except
as set forth in this Section, no Partner shall receive or be entitled to
any compensation or reimbursement for its services to or expenses incurred
in connection with the Partnership. |
| |
| (b) The
General Partner shall be entitled to receive reimbursement from the Partnership
for all costs and expenses incurred by it in connection with the conduct
of the business of the Partnership, or paid by it for the account of the
Partnership, including, without limitation, reasonable charges for the management
of the Partnership and for maintaining the books and records of the Partnership
and all costs and expenses of maintaining the Partnership’s existence
and good standing as well as all legal and accounting fees allocable to
the Partnership. |
-13-
| (c) To
compensate the General Partner for its services in connection with the leasing
and management of the Property, the Partnership may, subject to Section
24, enter into management, leasing, agency or similar agreements in form
acceptable to the General Partner, in its sole discretion, with the General
Partner or an Affiliate and pay to the General Partner or an Affiliate all
management and leasing fees and commissions payable thereunder. |
| |
| (d) Nothing
in this Agreement shall be deemed to restrict in any way the freedom of
any Partner (including, without limitation, the General Partner) or any
person, firm or corporation affiliated with any Partner to conduct or engage
in any business or activity whatsoever, for its own account and without
regard to the business of the Partnership, including, without limitation,
acquiring, developing, promoting, leasing, selling or exploiting real property
and functioning as a real estate broker, agent or consultant, regardless
of the location of the real estate involved in such business or activity;
and neither the Partnership nor any Partner shall have any rights in or
to, or any right to an accounting for, any income or profit derived by any
other Partner or its Affiliate(s) from such business or activity. In this
regard, the Partners specifically acknowledge that the General Partner and
Affiliates of the General Partner presently engage in businesses which are
or may be directly competitive with the business of the Partnership; provided,
however, that nothing in this paragraph shall abridge or expand the rights
of any Limited Partner under any non-competition agreement or other similar
arrangement which it may have entered into with the General Partner or any
other Partner. |
| |
| Section
1.11. Transactions with Affiliates |
| |
| (a) The
General Partner is authorized to enter into agreements on behalf of the
Partnership with Affiliates of the General Partner, or persons affiliated
with the Limited Partners, provided that any such agreement is made on terms
which the General Partner, in its sole discretion, deems reasonable and
in the best interest of the Partnership. This Agreement shall not give the
Partnership or any Partner any interest in, or right to, any such business
or activity or any proceeds, income or profit thereof or therefrom, and
no Partner shall be obligated hereunder to offer any business opportunity
to the Partnership or to any other Partner. The fact that a Partner is directly
or indirectly interested in, affiliated or connected with any person, firm
or corporation shall not prevent the Partnership from employing or retaining
any such person, firm or corporation to render or perform a service or from
purchasing merchandise or property from any such person, firm or corporation,
and neither the Partnership nor any Partner, as such, shall have any rights
in or to any income or profit derived by any such person, firm or corporation
as a result of such employment, retainer or purchase. |
| |
| (b) Without
limiting the foregoing, the Partners specifically acknowledge that the Partnership
expects to enter into various arrangements with the General Partner and
its Affiliates to provide for the management, leasing, and maintenance of
Partnership property. By executing this Agreement, each Partner hereby acknowledges
that it is anticipated that the Partnership will borrow money from the General
Partner and other Affiliates or from lenders to the General Partner or other
Affiliates and lend money (on both a secured and unsecured basis) to the
General Partner and other Affiliates and, in certain instances, secure such
borrowings by pledges and mortgages of all or substantially all of its properties
and assets. |
-14-
| Section
1.12. Books, Records and Financial Reports |
| |
| (a) The
Partnership shall maintain or cause to be maintained at its principal place
of business books of the Partnership showing all receipts, expenditures,
assets, liabilities, profits and losses, and shall maintain all other records
necessary for recording the Partnership’s business and affairs. The
books of the Partnership shall be kept on the accrual method of accounting
used for federal income tax purposes or such other basis as the General
Partner shall determine. Such books and records shall be open to the inspection
of each Partner or the duly authorized representatives of such Partner upon
reasonable notice at reasonable times during normal business hours to the
extent required by the Act; provided, however, that the General Partner
may keep confidential from the Limited Partners for such reasonable period
of time as the General Partner deems appropriate, any information that the
General Partner in good faith reasonably believes is not in the best interests
of the Limited Partners or the Partnership to reveal. |
| |
| (b) The
General Partner is hereby designated as the Tax Matters Partner of the Partnership
within the meaning of Section 6231(a)(7) of the Code. The General Partner
shall make all decisions as to accounting principles and all elections required
or permitted to be made by the Partnership under the Code pertaining to
the method of depreciation and deductibility of costs and expenses for the
purposes of determining the Partnership’s distributable income and
losses as well as for federal income tax reporting purposes. |
| |
| (c) The
fiscal year of the Partnership shall be the calendar year. |
| |
| (d) Within
sixty (60) days following the last day of each of the first three fiscal
quarters of each fiscal year, the General Partner, at the expense of the
Partnership, shall cause to be prepared and furnished to the Partners a
financial account of the Partnership for such quarter prepared on such basis
as the General Partner shall determine to be appropriate. |
| |
| (e) Within
ninety (90) days following the last day of each fiscal year, the General
Partner shall furnish to the Partners a financial account for such preceding
fiscal year prepared at the Partnership’s expense on such basis as
the General Partner shall determine to be appropriate. |
| |
| (f) There
shall be delivered to each Partner as soon as practicable and in any event
within ninety (90) days after the close of each fiscal year, a copy of the
Federal Partnership Return of Income (Form 1065) or other tax return filed
by the Partnership. |
| |
| (g) The
General Partner may, in its sole discretion, perform, or cause to be performed,
at the Partnership’s expense, such additional audits, accountings
or appraisals of the Partnership’s business any assets as it from
time to time or at any time determines to be necessary or appropriate. |
| |
| Section
1.13. Restrictions on Transfer |
| |
| (a) Transfer
of General Partners’ Interest. The General Partner may sell, convey,
assign, transfer, pledge, hypothecate or otherwise encumber or dispose of
(any such |
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event, a “Transfer” and the taking
of any such action, “To Transfer”) any Partnership Interest held
by it on the date hereof or hereafter acquired by it without the consent of
any Partner.
| (b) No
Limited Partner may Transfer all or any portion of, or any right in or to,
any Partnership Interest held by it on the date hereof or hereafter acquired,
without the consent of the General Partner, which may be given or withheld
in its sole and absolute discretion. Further, any Transfer by any Limited
Partner of any interest which it may hold in the Partnership shall be made
only upon such terms and conditions as the General Partner, in its sole
and absolute discretion, shall approve. |
| |
| (c) Any
issuance, sale, disposition, pledge, hypothecation by any Partner other
than the General Partner, or other encumbrance of capital stock, partnership
interest, options, warrants, rights or other equity securities in or to
any Partner other than the General Partner that is a corporation, partnership,
association or other entity or by any shareholder or other owner of any
Partner shall constitute a Transfer and may not be made, in the case of
such a Transfer by or with respect to a Limited Partner, without the consent
of the General Partner, which may be given or withheld in its sole and absolute
discretion. In order to effectuate this restriction on Transfers, each Partner
shall, and shall cause each owner of any interest in such Partner, to execute
such agreements as may be required by the General Partner. In connection
with the foregoing, each Partner understands and agrees that any direct
or indirect issuance or Transfer of partnership interests or other securities
in the General Partner or stock or other securities of the General Partner
thereof shall not constitute, and shall not for the purposes of this Agreement
be deemed to constitute, a Transfer of any interest in or to the General
Partner. |
| |
| (d) All
Transfers permitted hereunder shall be by instrument in form and substance
satisfactory to the General Partner. Any Transfer in violation of this Agreement
shall be null and void and shall not operate to vest any rights in any transferee.
Subject to the foregoing, every transferee of any Partnership Interest who
wishes to participate in the Partnership as a Partner shall execute a counterpart
of this Agreement accepting and adopting all of the terms and provisions
of this Agreement, as the same may have been amended, and any transferee
who fails to do so shall not be entitled to any rights hereunder as a Partner
or otherwise. In addition, each of the transferee and the transferor shall
execute and acknowledge all such other instruments, in form and substance,
satisfactory to the General Partner, as may be necessary or desirable to
effectuate such Transfer on terms acceptable to the General Partner. |
| |
| (e) In
no event shall the Partnership dissolve or terminate upon the admission
of any Partner or upon any permitted Transfer of a Partnership Interest
by any Partner. Each Partner hereby waives its right to dissolve, liquidate
or terminate the Partnership in such event. |
| |
| (f) All
expenses of the Partnership and of the Partners occasioned by a Transfer
permitted under this Section 13 shall be borne by the Partner effecting
the permitted Transfer. |
| |
| (g) Each
Partner hereby indemnifies and holds harmless the Partnership and each of
its Partners and the Partnership against any loss, claim, cost, expense,
damage or |
-16-
liability in respect of any Transfer (or purported
Transfer) which such Partner may make (or attempt to make) in violation of this
Agreement.
| (h) For
purposes of computing allocations of income, gain, loss and deduction hereunder,
the books of the Partnership shall be closed as of the beginning of the
day on which any Transfer occurs. All income, gain, loss and deduction recognized
by the Partnership before such closing of the books shall be allocated to
the Partners immediately prior to such closing in accordance with this Agreement
as in effect at the time such books are closed, and all such items recognized
by the Partnership after such closing of the books shall be allocated among
the remaining Partners in accordance with this Agreement as thereafter in
effect. Gain or loss from the sale or other taxable disposition of a Partnership
Capital Asset shall be allocated to the persons who were Partners at the
time such gain or loss was recognized by the Partnership. |
| |
| Section
1.14. Admission of Additional Partners |
| |
| (a) New
or substitute General or Limited Partners may freely be admitted to the
Partnership by the General Partner, in its sole and absolute discretion,
as a result of Transfer of Partnership Interests permitted hereunder or
the issuance of additional Partnership Interests permitted hereunder. Each
new Partner shall be admitted pursuant to this Section 14. The Partnership
Interest of any such new Partner shall be fixed in accordance with Section
7(e) above, with an appropriate adjustment in the Partnership Interest of
the existing Partners. Each new or substitute Partner shall sign a supplement
to this Agreement at the time such new Partner is admitted confirming the
admission of the new Partner as a Partner hereunder. |
| |
| (b) In
connection with the admission of any new or substitute Partner to the Partnership,
the General Partner shall have the power, right, and authority to amend
this Agreement to reflect the rights and obligations of such new Partner,
including without limitation his or its obligations to contribute to the
capital of the Partnership, rights to distributions, or rights to approve
or consent to Partnership actions. |
| |
| (c) In
the event any person is admitted as a substitute General Partner, such admission
shall occur contemporaneously with withdrawal of the then existing General
Partner. |
| |
| Section
1.15. Dissolution Events |
The Partnership shall continue in effect until the expiration of its term, unless it shall be dissolved in the manner provided in Section 16 hereof due to the happening of any of the following events:
| (a) The
determination by the General Partner, in its sole discretion, to dissolve
the Partnership; provided, however, that except for the dissolution as a
result of insolvency or bankruptcy of the Partnership or the General Partner,
the General Partner will not voluntarily dissolve the Partnership without
the Residual Interest have first been acquired by the Operating Partnership. |
-17-
| (b) The
disposition by the Partnership of all of its assets and property, unless
such sale or disposition involves any deferred payment of the consideration
for such sale or disposition, in which case the Partnership shall not dissolve
until the last day of the calendar year during which the Partnership shall
receive the balance of such deferred payment; |
| |
| (c) The
resignation or dissolution of the General Partner, unless at the time of
such resignation or dissolution there shall be one or more other General
Partners who are members of the Partnership or who are simultaneously with,
or have been prior to, such event, admitted to the Partnership; |
| |
| (d) The
entry of a final judgment, order or decree of a court of competent jurisdiction
adjudicating the Partnership to be a bankrupt, and the expiration without
appeal of the period, if any, allowed by applicable law in which to appeal
therefrom; |
| |
| (i) makes
an assignment for the benefit of creditors; |
| |
| (ii) files
a voluntary petition in bankruptcy; |
| |
| (iii) is
adjudicated a bankrupt or insolvent; |
| |
| (iv) files
an application or answer seeking for himself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation; |
| |
| (v) files
an answer or other pleading admitting or failing to contest the material
allegations of a petition or application filed against him in any proceeding
of a type referred to in subparagraph (ii) or (iv); or |
| |
| (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or liquidator
of the general partner or of all or any substantial part of his properties. |
| |
| (f) Dissolution
by operation of law; or |
| |
| (g) The
vote of all the Partners. |
| |
| Section
1.16. Winding up, Liquidation and Dissolution |
| |
| (a) Upon
the dissolution of the Partnership under Section 15 of this Agreement, liquidation
and winding up shall be carried out by the General Partner, acting as liquidator,
in accordance with the provisions of this Section 16, unless a majority
in interest of the Partners agree in writing to appoint one or more substitute
General Partners and to continue the business of the Partnership as provided
in the Act, in which case the business of the Partnership shall be so continued. |
-18-
| (b) Upon
dissolution of the Partnership the business of the Partnership shall continue,
if necessary, for the sole purpose of winding up its affairs; provided that
the process of winding up may include completion of such work as the General
Partner shall consider appropriate. The rights and obligations of the General
Partner with respect to management of the Partnership as set forth herein
shall continue during the period of such winding up, except that if the
General Partner shall have become incapacitated from exercising the management
powers set forth herein because the General Partner has been liquidated
or dissolved or is subject to a proceeding in bankruptcy, said powers shall
pass to the General Partner’s liquidating trustee or trustee or receiver
in bankruptcy as appropriate. |
| |
| (c) The
assets of the Partnership shall, consistent with Section 16(a), be liquidated
as promptly as possible so as to permit distributions in cash, but such
liquidation shall be made in an orderly manner so as to avoid undue losses
attendant upon liquidation. |
| |
| (d) The
Partners hereby agree that, notwithstanding the provisions of the Act and
any other laws, the proceeds of liquidation and all other assets of the
Partnership shall be applied and distributed in the following order of priority: |
| |
| (i) in
payment of the expenses of liquidation; |
| |
| (ii) in
payment of debts of the Partnership to creditors other than the Partners
in such order and priority as is required by law; |
| |
| (iii) to
establish reserves deemed reasonable for the ultimate discharge of contingent,
unliquidated or unforeseen liabilities or obligations of the Partnership; |
| |
| (iv) in
payment of debts of the Partnership to Partners who are also creditors;
and |
| |
| (v) to
those Partners having positive Capital Account balances in proportion to
such positive balances after giving effect to all contributions, distributions
and allocations for all periods. |
The intent and purpose of this subsection (d) is to modify the priorities of distribution set forth in the Act to reflect the understanding and agreement of the Partners.
Such distributions shall be made by the end of the Partnership year in which the liquidation occurs (or, if later, within ninety (90) days after the date of such liquidation).
| (e) In
the event that complete liquidation of the assets of the Partnership within
the period of time prescribed for distributions in Section 16(d) proves
impracticable, assets of the Partnership other than cash may be distributed
to the Partners in kind. Any asset distributed in kind pursuant to this
subparagraph shall be distributed to the Partners, valued at fair market
value, in accordance with their Capital Accounts as determined after (i) application
of Section 8 of this Agreement; (ii) reduction for distributions of
cash and cash-equivalents pursuant to Section 19(b); and (iii) the
adjustments to reflect the amount of income, gain, or loss |
-19-
which the Partnership would have recognized if
such assets had been sold, as prescribed in Section 7(g)(ii).
| (f) If
the General Partner deems it necessary to provide for payments of known
or contingent or unforeseen liabilities of the Partnership after the expiration
of the time period prescribed for distributions in subsection (c), then
the General Partner may arrange for such payments out of the assets of the
Partnership in any manner that does not violate the requirements of Treas.
Reg. §1.704-1(b)(2)(ii)(b)(2). |
| |
| (g) In
connection with the termination of the Partnership, the Partnership’s
accountants shall prepare and furnish to each Partner a statement setting
forth the assets and liabilities for the Partnership as of the date of complete
liquidation. |
| |
| (h) Upon
dissolution of the Partnership the General Partner shall contribute to the
Partnership an amount of money equal to the lesser of: (i) the deficit balance,
if any, in its Capital Account and (ii) the excess, if any, of one and one-hundredths
percent (1.01%) of the aggregate capital contributions of the Limited Partners
over the capital contributions previously made by the General Partner. Any
contributions required under this subparagraph (h) shall be made no later
than a date that will permit such contributions to be distributed among
the Partners in accordance with the provisions of this Section 16 within
the time period provided for such distribution in Section 16(d). |
| |
| (i) Upon
a termination of the Partnership for federal income tax purposes under Code
Section 708(b)(1), other than a termination caused by a dissolution described
in Section 15, the amount of any constructive liquidating distributions
of the Partnership properties deemed to occur under Treas. Reg. §1.7081(b)(1)(iv)
shall be determined in accordance with the positive Capital Account balances
of the Partners, as determined after taking into account all Capital Account
adjustments for the Partnership taxable year ending upon the date of such
termination including, without limitation, the adjustments prescribed in
Sections 7(h) and 7(j). |
| |
| (j) The
liquidation of the Partnership shall be final when all of the Partnership
assets have been collected and applied to the Partnership obligations and
its remaining assets, if any, have been distributed to the Partners in accordance
with this Agreement. Upon the conclusion of such Events, and the completion
of the Liquidators’ final accounting, the Partnership shall terminate. |
| |
| (k) In
the event of any termination of the Partnership, the books and records of
the Partnership shall be retained for a period of seven years (by the General
Partner or its designee and, if the Partnership is liquidated as a result
of the withdrawal of the General Partner, by such person as may be selected
by persons holding a majority of the then outstanding Limited Partnership
interest). |
| |
| (l) The
General Partner acting as liquidator (or any other person so acting pursuant
to this Agreement) under this Agreement shall be indemnified by the Partnership
with respect to all actions taken to liquidate the Partnership in accordance
with this Agreement. |
-20-
| Section
1.17. Power of Attorney |
| |
| (a) Grant
of Power. Each Limited Partner hereby makes, constitutes and appoints
the General Partner, and any successor General Partner, with full power
of substitution and resubstitution, its agent and attorney-in-fact, for
it and in its name, place and stead and for its use and benefit, to sign,
execute, certify, acknowledge, swear to, file and/or record this Agreement
and to sign, execute, certify, acknowledge, swear to, file and/or record
a Certificate of Limited Partnership or any other instruments that may be
required in connection with the formation of the Partnership, the conduct
of the Partnership’s business or the dissolution and winding-up of
the Partnership under the laws of the Commonwealth of Pennsylvania or any
other jurisdiction, including without limitation, instruments (i) to reflect
the exercise by the General Partner of any of the powers, authorizations
or rights granted to it under this Agreement or the taking by the General
Partner of any action which it is required, authorized or permitted to take
hereunder; (ii) to reflect any amendments made to this Agreement or the
cancellation of this Agreement upon the dissolution of the Partnership;
(iii) to make any amendments to this Agreement deemed necessary or desirable
by the General Partner (x) to comply with Federal or state securities laws
or comments made by staff members of any Federal or state agency regulating
the issuance of securities, or (y) to better express or carry out the purpose
of the Partnership as a title holding partnership for the General Partner,
or (z) to better express or carry out the mortgaging or pledging of the
Property and any other assets of the Partnership to secure the obligations
and liabilities of the General Partner or any Affiliate of the General Partner
when deemed appropriate or desirable by the General Partner; (iv) to make
filings under fictitious name statutes or other filings required by the
Partnership; (v) to reflect the admission to the Partnership of any additional
or any substituted Limited Partner, in the manner prescribed in this Agreement;
(vi) to cause the Partnership to be qualified to do business in, or, if
required, to exist as a limited partnership under the law of, any jurisdiction;
and any other instruments which may be required of the Partnership or of
the Partners, or deemed desirable by the General Partner. Each Limited Partner
authorizes such attorney-in-fact to take any further actions which such
attorney-in-fact shall consider necessary or advisable in connection with
any of the foregoing, hereby giving such attorney-in-fact full power and
authority to do and perform each and every act or thing whatsoever requisite
or advisable to be done in and about the foregoing as fully as the Limited
Partner might or could do if personally present, and hereby ratifying and
confirming all that such attorney-in-fact shall lawfully do or cause to
be done by virtue hereof. The Limited Partner waives any and all defenses
which may be available to the Limited Partner to contest, negate, or disaffirm
the actions of any General Partner under the power of attorney herein granted. |
| |
| (b) Nature
of Power. The power of attorney granted pursuant to this Agreement: |
| |
| (i) is
a special power of attorney coupled with an interest and is irrevocable; |
| |
| (ii) may
be exercised by such attorney-in-fact by listing the names of all of the
Limited Partners who are to be parties to any agreement, certificate, |
-21-
instrument or document, with the signatures of
such attorney-in-fact together with the recital that it acts as attorney-in-fact
for all of them; and
| (iii) shall
survive the death, bankruptcy or mental incapacitation of the Limited Partner,
to the extent it may legally contract for such survival, or the transfer
or assignment by it of its interest herein, except that where such transfer
or assignment is of all of the interest held by the Limited Partner and
the transferee or assignee thereof, with the consent of the General Partner,
is admitted as a substituted limited partner, the power of attorney given
by the transferor shall survive such transfer or assignment for the sole
purpose of enabling such attorney-in-fact to execute, acknowledge, swear
to, and file any agreement, certificate, instrument or document necessary
to effect such substitution. |
| |
| (c) Execution
of Additional Documents. Upon request of the General Partner, the Limited
Partner shall promptly execute all certificates, agreements and other documents
necessary or desirable for the General Partner to accomplish all such filings,
recordings, publications and other acts as it determines may be appropriate
to comply with (i) the requirements for the formation, operation, amendment
or dissolution, as the case may be, of a limited partnership under the laws
of the Commonwealth of Pennsylvania and (ii) similar requirements of applicable
law in all other jurisdictions where the Partnership proposes to conduct
business or (iii) as may be necessary and appropriate to advance the business
and achieve the goals of the Partnership. |
| |
| Section
1.18. Successors and Assigns |
Except as otherwise set forth in this Agreement, the terms, covenants and agreements herein contained shall inure to the benefit of and be binding upon the successors, heirs and assigns of the parties hereto. This Agreement and the rights and obligations set forth herein may not be assigned or delegated by any party without the written consent of each other party hereto, except as provided herein.
Any notice or communication required or referred to herein shall be in writing and transmitted by personal delivery or by registered or certified mail, postage prepaid, or by Federal Express or other nationally recognized overnight courier service, addressed to such Partner at the address set forth below or to such other address as such Partner may hereafter designate to the other Partners in accordance herewith.
If to the General Partner or Limited Partner:
| c/o Brandywine Operating Partnership,
L.P. |
| |
| Section
1.20. Governing Law |
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This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
Section titles or captions contained in this Agreement are inserted only for reference and in no way define, limit, extend or describe the scope or intent of any provision of this Agreement.
| |
| (a) The
General Partner shall have the power and authority, in its discretion and
without the consent of any other Partner, to amend the provisions of this
Agreement except if such amendment would have a material adverse affect
on the Limited Partner. |
| |
| Section
1.23. No Third Party Beneficiary |
Any agreement to pay any amount and any assumption of liability herein contained, express or implied, shall be only for the benefit of the Partners and their respective heirs, successors, and assigns, and such agreements and assumptions shall not inure to the benefit of the obligees of any indebtedness or any other party whatsoever, it being the intention of the Partners that no one shall be deemed to be a third party beneficiary of this Agreement.
| Section
1.24. Severability |
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first stated above.
| |
GENERAL PARTNER |
| |
▇▇▇▇▇▇ OPERATING PARTNERSHIP,
L.P. |
| |
|
|
| |
By: |
Brandywine ▇▇▇▇▇▇ LLC, its General Partner |
| |
|
|
| |
|
|
| |
|
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
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|
|
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|
President and Chief Executive Officer |
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|
|
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|
|
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LIMITED PARTNER |
| |
BRANDYWINE OPERATING PARTNERSHIP,
L.P. |
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| |
By: |
Brandywine Realty Trust, its General
Partner |
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|
|
| |
|
|
| |
|
/s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
| |
|
|
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|
President and Chief Executive Officer |
| |
|
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Back to Contents
EXHIBIT “A”
Identity and Interests of Partners
I.
GENERAL PARTNER
| |
|
Capital |
Profits |
|
| Name and Address |
|
Interest |
Interest |
|
| |
|
|
|
|
| ▇▇▇▇▇▇ Operating Partnership,
L.P. |
|
88.9% |
98.9% |
|
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
|
|
|
|
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
|
|
|
|
II.
LIMITED PARTNERS
| |
|
Capital |
Profits |
|
| Name and Address |
|
Interest |
Interest |
|
| |
|
|
|
|
| Brandywine Operating Partnership,
L.P. |
|
11.1% |
1.1% |
|
| ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
|
|
|
|
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
|
|
|
|
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